Transparency in the Dispute Settlement Process: Country best practices

The report analyzes the trend of states integrating transparency rules directly into investment treaties to overcome the confidentiality typical of private commercial arbitration. It evaluates best practices across various stages of the dispute process, including public notice of proceedings, access to documents, open hearings, amicus curiae briefs, and the publication of final awards, while detailing how confidential business information is protected.

• Investor-state disputes often lack transparency because they use procedural rules designed for private commercial arbitration, which can undermine the perceived legitimacy of the system and prevent the public from assessing the practical meaning of investment agreement obligations.
• The ICSID Rules provide more inherent transparency than UNCITRAL Rules; for instance, ICSID automatically discloses the registration of arbitrations and the legal reasoning behind awards on its website, whereas UNCITRAL Rules make it difficult for the public to know if a proceeding has been initiated.
• To ensure public awareness of disputes, the United States and Australia-Chile agreements require the respondent state to promptly make notices of intent and notices of arbitration available to the public.
• Different countries adopt varying levels of document disclosure: the US Model BIT and COMESA Investment Agreement mandate the publication of pleadings and transcripts, while Canada's Model FIPA sets transparency as the default but allows parties to agree to deviate from mandatory disclosure for documents other than awards.
• There is a growing trend toward open hearings to prevent investors from using veto power to keep proceedings secret. The US, Canada, and Mexico have all expressed advance consent for open NAFTA hearings, and the US Model BIT and Canada's Model FIPA now mandate that hearings be open to the public.
• Provisions for amicus curiae briefs allow non-parties to provide information to tribunals. While the 2006 ICSID Rules explicitly allow this after consultation with parties, Canada's Model FIPA requires tribunals to consider specific factors, including the public interest in the subject-matter.
• The publication of final awards varies by rule set: UNCITRAL Rules generally require the consent of both parties for publication, whereas the US Model BIT and Canada's Model FIPA mandate that awards be made public.
• All examined investment agreements include protections for confidential information, typically defined as business confidential information or information privileged under a party's law, to ensure that transparency does not compromise sensitive data.
• The US Model BIT implements a specific procedural mechanism for protecting information, requiring parties to submit redacted versions of documents and granting the tribunal the authority to decide objections regarding the designation of protected information.

APA

Bernasconi-Osterwalder, N., & Johnson, L. (2011). Transparency in the Dispute Settlement Process: Country best practices. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf

Chicago

Bernasconi-Osterwalder, Nathalie, and Lise Johnson. Transparency in the Dispute Settlement Process: Country best practices. International Institute for Sustainable Development, 2011. https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |last2=Johnson |first2=Lise |title=Transparency in the Dispute Settlement Process: Country best practices |publisher=International Institute for Sustainable Development |date=February 2011 |url=https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2011transparency, author = {Bernasconi-Osterwalder, Nathalie and Johnson, Lise}, title = {{Transparency in the Dispute Settlement Process: Country best practices}}, institution = {International Institute for Sustainable Development}, year = {2011}, month = feb, url = {https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }